St. John’s Law Review has just published my new article, Revisiting the Ambiguity of “And” and “Or” in Legal Drafting. My co-author is Alan S. Kaye, professor of English, comparative literature, and linguistics and director of the Laboratory of Phonetic Research at California State University, Fullerton. Click here to go to a copy of the article.
Here’s the abstract:
Most general works on legal drafting contain a discussion of ambiguity, and usually such discussions touch on the ambiguity associated with the words and and or. Treatment of this topic has, however, been characterized by oversimplification and error. This is not without consequence, as an element of this flawed analysis has made its way into case law.
In this article, the authors reexamine the ambiguity engendered in legal drafting by and and or. They do so in a way that reflects linguists’ understanding of the subject, and they explore how ambiguity varies depending on the grammatical context.
After defining ambiguity and distinguishing it from vagueness and after considering the significance of context, this article examines the ambiguity engendered by plural nouns, a topic that is closely related to the ambiguity of and and or. It then discusses in turn the ambiguity engendered by and and by or and closes with a discussion of and/or and the ambiguity of and used in conjunction with or. Any marked divergence from analyses offered elsewhere in the literature on legal drafting is noted.
This article is an expanded version of the discussion of this topic contained in A Manual of Style for Contract Drafting. Besides adding to, and tweaking, the core analysis, this article contains the sort of context, not to mention footnotes, that would be out of place in a manual of style.
This was an exciting article to write, in that the topic is a fundamental one that hasn’t been adequately covered. And it was a treat to write about the rather spectacular disagreement over the meaning of or. But writing the article was also challenging, given the complexity of the subject. For one thing, I had to invent a framework for my analysis. And over the course of a couple of years, when drafting or reviewing contracts, I would occasionally stop in my tracks on encountering a given and or or and ask myself whether that use of the word raised yet another issue. Often enough, it did.
Although the article refers to ambiguity in legal drafting, the analysis applies equally to any legal writing. It’s just that in legal drafting the meaning conveyed by and and or is more likely to be subject to scrutiny.
Whenever I encounter an article written by co-authors, I wonder who did what. In this case, I spotted the issues, did the research, and wrote the entire article. Because I’m no linguist, I enlisted Alan to reduce the odds of my making a fool of myself. He helped me understand the fundamental flaw in the existing literature, and without his being on hand to brainstorm issues as they came up, I wouldn’t have had the courage to write the article. And I love the groovy interdisciplinary vibe that comes from having a linguist as co-author.